Texas: Don’t Let the Legislature Gut Your State’s Free Speech Laws

Texas: Don’t Let the Legislature Gut Your State’s Free Speech Laws

A bill is moving forward in the Texas Legislature that would make it easier to bring baseless lawsuits against Internet users in the state who review businesses, speak anonymously, or otherwise exercise their First Amendment rights. If you’re a Texan, we need you to contact your lawmakers and speak up for free speech.

The bill, HB 2730, would gut key protections of the Texas Citizens Participation Act, or TCPA. The TCPA was passed in 2011 to help fight back against lawsuits meant to silence free speech, which are sometimes called SLAPPs—which stands for Strategic Lawsuit Against Public Participation. The Texas anti-SLAPP law’s robust speech protections have made it a national model.

Properly crafted anti-SLAPP laws provide critical protections for speech. While the state laws are different, they generally allow individuals targeted by the suits to get them thrown out early and allow targets of the lawsuits to recoup their costs and attorneys’ fees from the party that sued them.

The TCPA contains these provisions and others that make it a powerful tool for everyday Texans who get dragged into court for exercising their First Amendment rights. Even meritless lawsuits targeting speech fully protected by the Constitution are expensive, time consuming, and intimidating to defend against. The biggest motivator for litigants bringing a SLAPP suit is often to inflict financial and other damage on their targets rather than vindicate legitimate legal claims, making it a battle that many people simply can’t afford.

Since the TCPA passed in 2011, it has worked incredibly well to protect Texans targeted for exercising their free speech rights. But the TCPA will be seriously damaged if HB 2730 passes in its current form.

The bill includes specific provisions that would harm speakers who rely on the Internet for free speech. First, the bill will help individuals who want to intimidate, harass, or silence anonymous speakers. They’ll be able to take advantage of a feature of Texas law that allows them to find out speakers’ identities, without having to file a lawsuit. Anonymous speakers are already targets of vexatious lawsuits. HB 2730 is particularly concerning because it would explicitly prevent anonymous speakers targeted by Texas’ pre-litigation discovery process from being able to use the TCPA to defend themselves. The bill gives the green light to companies that want to wipe away online criticism, including true statements or opinions protected by the First Amendment.

Second, the bill greatly narrows the type of First Amendment activity that would be protected by the TCPA. It specifically exempts speech related to “selling or leasing goods or services,” among other things. Online reviewers could be threatened with lawsuits just for giving their honest views of a product, and wouldn’t be able to defend themselves with the TCPA.

Finally, it punches huge a loophole in the TCPA by exempting legal actions to enforce non-disparagement agreements. These types of clauses can be buried deep inside contracts, and consumers sometimes don’t even know they have signed away their right to criticize a business or online service. The bill would exacerbate the power imbalance between online services and their users—companies and others could sue users won’t get any protections under the TCPA.

With the bill expected to receive a hearing next week in the Judiciary and Civil Jurisprudence committee in the Texas House of Representatives, it’s critical that the nine committee members hear from Texans this week. Send an email now.

Related Updates

Special thanks to legal intern Maria Bacha who was the lead author of this post. EFF, Student Press Law Center (SPLC), Pennsylvania Center for the First Amendment (PaCFA), and Brechner Center for Freedom of Information filed an amicus brief in B.L. v. Mahanoy Area School District urging the U.S...

We pause this week to celebrate our longtime friend Gene Crick, a digital rights activist and former president of EFF-Austin, who passed away August 14 in Texas at age 73. Gene was a tireless advocate for free speech, a free, open, and inclusive Internet, and digital rights for everyone in...

Media outlets reported this week that an international student at Harvard University was deported back to Lebanon after border agents in Boston searched his electronic devices and confronted him about his friends’ social media posts. These allegations raise serious concerns about whether the government is following its own policies regarding...

The U.S. Court of Appeals for the Second Circuit last week became the first federal appellate court to rule that Section 230 bars civil terrorism claims against a social media company. The plaintiffs, who were victims of Hamas terrorist attacks in Israel, argued that Facebook should be liable...

The U.S. Department of Homeland Security (DHS) and one of its component agencies, U.S. Customs and Border Protection (CBP), released a Privacy Impact Assessment [.pdf] on CBP’s practice of monitoring social media to enhance the agency’s “situational awareness.” As we’ve argued in relation to other government social media surveillance...

The Senate Judiciary Committee recently held a hearing on “Protecting Digital Innocence.” The hearing covered a range of problems facing young people on the Internet today, with a focus on harmful content and privacy-invasive data practices by tech companies. While children do face problems online, some committee members seemed...

In a long-awaited ruling, the Second Circuit has found that the replies section on President Trump’s Twitter @realDonaldTrump is a public forum and that the President cannot block his critics from reading his tweets or participating in the forum merely because he dislikes the views they express. This ruling...

EFF is representing People for the Ethical Treatment of Animals, challenging on First Amendment grounds the practice of Texas A&M University of automatically and manually blocking PETA and its supporters from posting comments on the university's official Facebook page, a forum that is otherwise open for public comments. In response...

This month, in many parts of the world, the LGBTQ+ community is celebrating Pride and, both online and off, the tech industry has paid lip service to supporting the community. Many social media companies participate in Pride parades or offer photo filters or other digital swag for users to show...